88. The representative of New Zealand recalled that his delegation had previously elaborated in great detail how New Zealand's authorities would consult the register. It would be fair to say that, in his country's legal system, an obligation to consult the register would require decision makers to seriously and honestly consider the information contained on that register.
89. Referring to the summary of the elaborations of what "consult the register" meant, namely elaborations which were directed at the decision-making process as opposed to elaborations which went more towards the substance of the actual decision, he said that was probably an important distinction between the two general approaches. The elaborations in TN/C/W/52 were directed at the substance of the decision rather than the decision making process only because of the use of presumptions or - as the European Communities had put it - of how the information should be taken into account, i.e. that it should be considered as prima facie evidence. Patently, TN/C/W/52 did not require that information be considered as prima facie evidence only; it required a presumption which applied unless there was proof to the contrary. This was a concept that went well beyond prima facie evidence. It meant that decision makers must be biased to a particular outcome. For example, when faced with conflicting claims as to whether a term was a GI or generic, a party seeking the monopoly intellectual property right would be at a significant advantage. This would be a change in the balance of rights and obligations: the balance would significantly tilt towards the party claiming the monopoly intellectual property right. His delegation agreed with a number of delegations that the TRIPS balance between the intellectual property right of the GI and the generics must not be undermined. So, in response to the Chair's question, he said that legal obligations around consulting the register were directed at the decision-making process and not at the substance of the decision, and that they should not predetermine or bias the decision itself. This would also partly respond to the Chair's second question.
