118. The representative of New Zealand said that, whilst his delegation was still studying this issue, it had a number of preliminary comments, which largely echoed comments made by other delegations. He thanked the Secretariat for its background note and, in particular, its review of the jurisprudence in this area. When one looked at the Secretariat's background note and reviewed jurisprudence from the GATT and the WTO, one realized that a finding of nullification and impairment of a benefit pursuant to Article XXIII:1(b) of the GATT ultimately depended on whether the complainant party, at the time of tariff negotiations, could be assumed to have had a reasonable expectation that the other party would not introduce a measure upsetting a benefit invariably established by a tariff concession. In contrast, the notion of a benefit in the TRIPS context would appear to be quite different. The TRIPS Agreement did not provide for reciprocal tariff bindings or commitments in addition to the general rights and obligations under the Agreement itself; it was simply an agreement which sought to protect intellectual property rights at the multilateral level through minimum standards, whilst at the same time recognizing that there might well be differences in the forms of protection and in the nature of enforcement of intellectual property rights among Members. In some respects, one could say that such benefits were of a more intangible nature when they stood beside the benefits that flowed from tariff concessions. In such circumstances, his delegation believed that Canada's paper and the interventions of Egypt and Hungary, on behalf of a number of Members, and other interventions by Members, highlighted that there were differences between the GATT environment and the TRIPS environment. This was something with which Members needed to grapple as part of the review process under Article 64.
