The use of autonomous vehicles is expected to grow
precipitously, and with it, novel legal questions will undoubtedly
arise. As a result, robust legislative and industry responses are
viewed by some as a pre-requisite to increased adoption of this
revolutionary shift in technology. In this article, we summarize
recent regulatory developments in Canada, Japan, the U.K., the
European Union, the U.S., and China, and highlight the state of the
autonomous vehicles regulatory landscape across these
jurisdictions.
Background
As a starting point, each of the jurisdictions we have
highlighted below has, in one way or another, adopted the SAE
International vehicle automation classifications1.
Against this backdrop, we examine how select countries around the
world have begun to regulate various levels of vehicle
automation.
Japan
In Japan, the government amended the Road Transportation
Vehicle Act (the RTVA) and the Road Traffic Act (the
RTA) in April 2020, which generally allows Level 3 automated
vehicles to be used on public roads.2 Under the RTVA,
“Autonomous driving system” (ADS) is defined and can be
translated as “a set of sensors and artificial intelligence
that replace all driver capabilities with a recording
device.”3 The RTVA outlines technical
specifications that ADS systems must comply with. Additionally,
manufacturers and importers of ADS-equipped vehicles must provide
model-specific ADS specifications to users.4
The RTVA permits the Minister of Land, Infrastructure, Transport
and Tourism to set conditions on the usage of each automatic
operating device.5 The conditions can include, among
other conditions:
- Road conditions: general road, motorway, specialized road,
highway, etc.; and - Geographic conditions: urban areas, mountainous areas and other
specialized areas.6
Under the RTA, the driver of a level 3 ADS-equipped vehicle
cannot use the ADS technology unless the usage conditions have been
met.7 If the driving environment conditions no longer
meet the requirements under the RTVA, the driver must take over.
Therefore, the driver must be in a position to facilitate a prompt
take-over.8
Significantly, under the RTA, the driver of an ADS-equipped
vehicle must use a vehicle recording device9. The police
may request disclosure of the applicable recording from the
driver.10 If the police are of the opinion that the
provided records are insufficient, they may issue penalties against
the driver including a driving prohibition.11 Under the
RTA, level 4 autonomous vehicles are essentially limited to
authorized public road testing.
Additionally, on September 8, 2021,12 the Ministry of
Land, Infrastructure, Transport and Tourism, and the Ministry of
Economy, Trade and Industry announced that it would carry out a new
project named “Road to the L4”.13 In this
project, the Japanese government aims to increase and implement the
use of Level 4 autonomous vehicles. The goal is to deploy the use
of Level 4 autonomous vehicles in more than 40 locations by
2025.14
United Kingdom and Europe
Most jurisdictions in Europe have created specific AV agencies
and implemented legislation to govern the testing of autonomous
vehicles. While some jurisdictions have adopted somewhat of a
roadmap for next step to address the adoption of
autonomous vehicles on public roads, the current legal frameworks
are likely to see further developments in the coming years as the
technology continues to develop toward higher levels of autonomy
and ADS adoption.
United Kingdom
In the UK, the Centre for Connected and Autonomous Vehicles was
established in 2015 by the government as an expert unit working
with industry and academia to develop regulations, invest in
innovation and engage the public to utilize the self-driving
technology in the U.K.15
In terms of legislation, The Automated and Electric Vehicles
Act 2018 received Royal Assent in 2018.16 This
legislation clarifies the U.K.’s liability scheme for
autonomous vehicles:
- Where the vehicle is insured and there is an injury resulting
from an accident, the insurer shall be liable for damages; - Where the vehicle is not insured, the owner shall be liable;
and - Where a person allows the vehicle to drive itself when it is
inappropriate to do so and causes an accident, neither the insurer
nor the owner of the vehicle shall be liable.17
In April 2021, the Department for Transport in the United
Kingdom announced that vehicles fitted with Automated Lane Keeping
Systems are within the definition of automated vehicles under the
Automated & Electric Vehicles Act 2018 so long as the
vehicles receive approval and that there is no evidence challenging
the vehicle’s ability to self-drive.18 Automated
Lane Keeping Systems will help a vehicle stay within its lane for
travelling speed of 60 km/h or less without the need for further
driver input.19 The Automated Lane Keeping Systems is
the first type of hands-free driving legalized in the United
Kingdom.20
In addition to the 2018 legislation, the Law Commission of
England and Wales and the Law Commission of Scotland are in the
process of carrying out a detailed review of legal reforms
necessary to support autonomous vehicles in the U.K., scheduled to
be released at the end of 2021.21
The European Union
Although each country within Europe is devising its own legal
framework on autonomous vehicles (as we have highlighted with the
three examples below), the European Union’s regulations,
directives, and other acts must be harmonized to the laws of its
member states. On May 17, 2018, the European Commission released a
strategy paper, “On the road to automated mobility: An EU strategy
for mobility of the future” aiming to make Europe a world
leader in the deployment of connected and automated vehicles.
Currently, there is no legislative framework specifically
dedicated to the necessary approvals of autonomous vehicles.
However, the European Union is relying on the existing regulations,
directives, and other acts for regulating autonomous vehicles. For
example, directive 2007/46/EC, modernized in 2018, established a
framework on how new vehicles should operate and be
designed.22
Also, the following directives are particularly germane to
autonomous vehicles:
- Directive 85/374/EEC – liability for defective products
- Directive 2001/95/EC – general product safety
- Directive 2006/42/EC – machinery
In the context of autonomous “machinery”23,
liability for damage is difficult to pinpoint24. Damages
arising out of machine defects or user errors may be traced back to
specific entities or individuals, who would then be held liable
under Directive 85/374/EEC. However, autonomous machines entail
intricate software programming, integration of the software with
the relevant hardware, execution of the autonomous program, and the
operation and monitoring of the system as a whole.25
In other words, the legal framework under Directive 85/374/EEC
may not necessarily lead to an unequivocal and cogent result. As it
stands, Directive 85/374/EEC fails to account for specific factors
like the particular software powering the autonomous machine and
the technological maturity of the autonomous system.
Similar concerns lie with Directive 2001/95/EC and Directive
2006/42/EC. Safety protocols and regulatory requirements with
respect to the design, construction, and operation of autonomous
vehicles appear to be absent from these directives. As various
states within Europe define what it means for a machine to be
autonomous differently and create appropriate but potentially
divergent regulatory schemes, it would be judicious for the
European Union to demonstrate pan-European leadership by working to
update its current framework and work with member states to
harmonize their respective legal frameworks.
France
On December 2, 2020, the French government published its
proposed “order on the criminal liability rules applicable to
the use of a vehicle with driving delegation and its conditions of
use” seeking to provide clarification regarding the legal
regime for self-driving cars.26
Under the proposed order, provisions relating to the criminal
liability for traffic offences will not apply to a driver who has
delegated the driving functions of the vehicle to an automated
system, subject to certain exceptions. For example, if the driver
was exercising dynamic control of the vehicle at the time of the
offence or failed to take control of the vehicle despite being
required by regulation. In these instances, the driver would
continue to face criminal liability.27
Further, the proposal imposes upon vendors and lessors of
autonomous vehicles a duty to inform consumers regarding the
conditions of use. Similarly, it clarifies the mandatory security
measures, safety tests, and specific accreditations for autonomous
vehicles used in areas like transportation and construction.
On July 1, 2021, the Minister of the Interior of France released
a decree amending the provisions of the Highway Code and
the Transport Code to allow for autonomous
vehicles.28 With this decree, France proceeded to adopt
a regulatory framework for the deployment of autonomous
vehicles.
This decree allows a driver to disclaim liability when the
automated driving system operates in accordance with its conditions
of use.29 This decree also regulates the interaction
between the driver and the automated driving system as well as the
expected attention from the driver when the automatic driving
system is engaged.30
This decree also allows the autonomous vehicles to be operated
on predefined routes and zones starting in September 2022.
Germany
On July 28, 2021, Germany’s amended the Road Traffic Act
and the Compulsory Insurance Act (the Germany Autonomous
Driving Act), entered into force. As a result of this
amendment, Germany no longer requires a driver operating the
vehicle and intends to allow for Level 4 autonomous vehicles to be
used on public roads.31
Under the Germany Autonomous Driving Act:
- A vehicle with an autonomous driving function no longer
requires a natural person to drive the vehicle during operation.
However, in order to ensure compliance with current international
regulations, a “technical supervisor” must monitor the
vehicle; - To obtain an operating permit, numerous requirements with
respect to the autonomous driving function must be satisfied; - There are more in-depth obligations for manufacturers and
owners of autonomous vehicles, including data processing
requirements and mechanisms for data and privacy protection;
and - There are special specifications on accident prevention
systems, which expound how damage avoidance and reduction can be
achieved in an ethically justifiable manner.32
Specifically, under the Germany Autonomous Driving Act,
autonomous vehicles must have an accident avoidance system. The
accident avoidance system must be designed to avoid damage and must
give the highest priority to the protection of human life if an
accident is unavoidable. If an injury to human life is unavoidable,
the system must not differentiate human life on the basis of
personal characteristics, such as age, sex, and physical or mental
constitution.33
Italy
Under the Decree 28/2/2018 of the Ministry of Infrastructures
and Transport,34 there are significant restrictions
placed on autonomous vehicles in Italy. The current regulatory
regime in Italy is principally aimed at the testing of Level 3 and
Level 4 autonomous vehicles on public roads and the testing of
Level 5 autonomous vehicles is not permitted.35 Although
the testing of autonomous vehicles is permitted with the
appropriate authorization on certain roads, there must be a human
driver present inside the vehicle to be able to take manual control
at any given time36.
At the time of this publication, Italy has not implemented any
further regulations with respect to fully autonomous
vehicles.37
United States
Until recently, federal input on the rapid emergence of
autonomous vehicles has been conspicuously absent. For example, the
federal Safely Ensuring Lives Future Deployment and Research In
Vehicle Evolution Act or the Self Drive
Act,38 which had been dormant since 2017, was
reintroduced again in June 2021.39
The re-introduced Self Drive Act seeks to advance
safety by prioritizing the protection of consumers, reaffirm the
role and responsibilities of federal and state governments, update
the Federal Motor Vehicle Safety Standards to account for advances
in technology and the evolution of highly automated vehicles, and
maximize research and development opportunities for autonomous
vehicles in the U.S.40
As well this proposed legislation requires the manufacturers of
autonomous vehicles to have a cybersecurity plan, including having
a written cybersecurity policy and appointing an officer for the
management of cybersecurity. However, the Self Drive Act
does not provide in depth requirements regarding how auto
manufacturers should ensure that their self-driving vehicles go
through software updates. Additionally, the Self Drive Act
does not address liability and damages for accidents involving
autonomous vehicles.41
At the state level, most jurisdictions have in place regulatory
schemes in place with respect to the testing of autonomous
vehicles. Some states, however, have more advanced and
comprehensive legislation than others. For example,
California’s law on autonomous vehicles is quite
comprehensive.42 In addition, California’s law
addresses the distinction between autonomous vehicle manufacturers
from original equipment manufacturers (OEMs)43. Notably,
however, the current law in California does not expressly shield
OEMs from liability relating to autonomous vehicles, unlike states
like Nevada, and Florida. In other words, if a vehicle manufactured
by an OEM is subsequently modified into an autonomous vehicle, and
that now autonomous vehicle is involved in an accident, the
OEM’s liability and its extent remain unclear under
California’s law. The legal uncertainty could have far-fetching
impacts on risk allocation between commercial parties, especially
in areas like construction.
Unlike California, Nevada expressly limits product liability
actions against OEMs where the action involves a defect in an
autonomous vehicle in certain situations.44 Nevada’s
legal stance is in line with Nevada’s push to be the state at
the forefront of driverless vehicle innovation. Under Nevada’s
law, an OEM would not be liable for defects in an autonomous
vehicle if the defect was caused when the original vehicle was
converted by a third party into an autonomous vehicle or if
equipment installed by the autonomous vehicle creator was
defective.45 Similar to Nevada, Florida provides a legal
framework, whereby an OEM is shielded from liability where its
vehicle was subsequently converted into an autonomous vehicle by a
third party.46
China
China’s legal framework is developing with few exceptions,
such as the Shenzhen Special Administrative Region (Shenzhen). More
recently and on March 24, 2021, the Ministry of Public Security of
China issued the Draft Proposed Amendments of the Road Traffic
Safety Law (the Draft Amendments to RTSL) for public
feedback and input.47 Regarding automated vehicles, the
Draft Amendments to RTSL define the requirements for road
testing and allocation of liability for accidents. The Draft
Amendments to RTSL require that manufacturers conduct road
testing for automated vehicles in closed roads before they can
apply for a temporary license to conduct further road testing in
public roads. Road testing on public roads can only be conducted at
designated times, areas and routes in accordance with the
law.48 During testing, the driver must be sitting in the
driver’s seat and must be able to take over when
needed.49
The Draft Amendments to RTSL contain a very short
provision regarding liability allocation for road traffic
violations or accidents involving vehicles with automated driving
functions and manual operation.50 It only states that
the responsibility of the driver and the automated driving system
developer shall be determined in accordance with the
law.51 This provision does not apply to automated
vehicles that do not have manual operation functions.
In January 2021, the Ministry of Industry and Information
Technology of China released the “Draft for Comments of
the Administrative Measures for Road Testing and Demonstration
Application” (the “Draft Road Testing
Regulation“) for public input. This draft regulation
provides more detailed and specific requirements for road testing
of automated vehicles.52 On July 27, 2021, the Ministry
of Transport, the Ministry of Industry and Information Technology,
and the Ministry of Public Security jointly promulgated this draft
into law.53
Shenzhen
On March 23, 2021, the Standing Committee of the Shenzhen
Municipal People’s Congress issued the Draft for Comments
of the Regulations of Shenzhen Special Economic Zone on the
Administration of Intelligent and Connected Vehicles (the
“Shenzhen Draft Regulations“).54 This
regulation applies to automated cars within the Shenzhen Special
Administrative Region and it incorporates the road testing
requirements introduced by the Draft Road Testing
Regulation. Shenzhen aims to be the first city in China to
allow the commercialization of autonomous cars. In addition, the
Shenzhen Draft Regulations allow road testing for
automated cars that are capable of being operated without a
driver.55
Generally, manufacturers may sell motor vehicles in China only
upon meeting the standards published by the Ministry of Industry
and Information Technology of China. However, the Shenzhen
Draft Regulations permit manufacturers to sell autonomous
vehicles within Shenzhen upon meeting a special set of local
standards.56
Automated vehicles can be operated on the roads of Shenzhen once
they are registered with Public Security Traffic Administrative
Bureau and the applicable certificates of registration, plates and
licenses are issued.57 The Shenzhen Draft
Regulations also regulate cybersecurity for automated cars
including requiring companies to establish a cybersecurity
evaluation and management system.58
The Shenzhen Draft Regulations also contain provisions
for determining liability for traffic violations and accidents of
autonomous vehicles:
- With a driver present, the driver shall be liable in case of an
accident; however, if the accident is caused by the defect in the
automated technology, the driver can sue the manufacturer or
distributor of the vehicle to recover damages paid to the
victim.59 - Without a driver present, the controller or owner of the
vehicle shall be liable in case of an accident. Similar to
automated cars with a driver, if the accident is caused by the
defect in the automated technology, however, the controller or
owner can sue the manufacturer or distributor of the vehicle to
recover damages paid to the victim.60
Most regulations regarding autonomous vehicles in China have
been published recently and are still in the process of public
consultation. To that end, we expect significant legal development
in the near future, including, regulations focussed in
early-adoption industry use cases.
Canada
At the federal level in Canada, the Motor Vehicle Safety
Act regulates the manufacture and importation of motor
vehicles.61 Provinces and territories in Canada have
developed and/or are developing their own regulatory regimes as to
the testing and deployment of autonomous vehicles on public
roads.
In August 2021, Transport Canada released the Guidelines for
Testing Automated Driving Systems in Canada Version 2.0 (the
Guidelines) which replaces the regulator’s 2018 edition of such
Guidelines.62 The Guidelines seeks to clarify the
different roles and responsibilities of federal, provincial,
territorial, and municipal governments in approving and
facilitating testing of autonomous vehicles as well as explaining
the process for organizations to obtain approvals from different
levels of government prior to conducting testing.63
In addition, there is limited public use of autonomous vehicles
in Canada. On January 1, 2019, O. Reg. 517/18: Pilot Project -
Automated Vehicles came into force in Ontario. Under this
regulation, with authorization, level 3 automated vehicles can be
driven on Ontario public roads. However, a human driver is required
at all times in the vehicle to take back the driving task when
alerted to do so by the vehicle and must be in full care and
control of the Level 3 vehicle. The existing law, including
distracted driving and impaired driving, continues to apply to the
drivers.64 Québec also has a similar legal
regime.65 In addition, as early as October 1, 2021,
Ontario began to solicit feedback on proposed amendments to Ontario
Regulation 306/15: Pilot Project – Automated Vehicles and Revised
Regulations of Ontario 1990, Regulation 628: Vehicle
Permits.66
Concluding remarks
The review of regulatory developments across different
jurisdictions reveals a continued focus to develop and update
existing regulatory frameworks to assist with the adoption of
autonomous vehicles. Interestingly, there are inconsistencies
across jurisdictions in the manner in which autonomous vehicles are
defined in the specific regulatory scheme. For example, in Canada,
the regulatory testing schemes make specific reference to SAE
Levels of automation, whereas under for example the U.K. scheme,
the legislation adopts a specific definition for “automated
vehicles” in reference to a “vehicle driving itself on a
public road or other public place. While we expect continued
developments of the regulatory landscape governing autonomous
vehicles in Canada, U.S., Europe, U.K., China, and Japan, as with
other jurisdictions across the globe, it will be interesting to
watch how regulators in each jurisdiction will adjust the
traditional motor vehicle safety, liability, and insurance
legislative schemes to prepare for increased levels of
automation.
BLG’s Autonomous Vehicles Group
With broad industry experience and particular expertise in
regulatory frameworks to assist with the adoption of autonomous
vehicles, BLG’s Autonomous Vehicles Group is here to
help clients navigate the opportunities and challenges this
revolutionary era of autonomy is expected to bring. For more
information on AV, please reach out to your BLG lawyer or one of
the key contacts listed below.
The authors of this article would like to thank Mr. Brian
Reigh for his contribution to this article.
Footnotes
1 The SEA classifications range from Level 0 (no
autonomy) to Level 5 (full autonomy). SAE Standards News: J3016 automated-driving
graphic update
2 Autonomous driving in Japan – part 1: road traffic
law
3 Ibid.
4 Ibid.
5 Legalization of Self-Driving Vehicles in
Japan: Progress Made, but Obstacles Remain.
6 Legal regulation of autonomous driving technology:
Current conditions and issues in Japan, page 2.
7 Autonomous driving in Japan – part 1: road traffic
law.
8 Legal regulation of autonomous driving technology:
Current conditions and issues in Japan.
9 Traffic Act Section 63, clause 2-2, Law No. 20, 2019.
Enacted May 28, 2019. Enforced June 5 of the same year
10 Traffic Act Section 119, clauses 1-6 and 7-2, Law No.
20, 2019. Enacted May 28, 2019. Enforced June 5 of the same
year
11 Ibid.
12 Japan launches new project to popularize L4
driving assistance by 2025.
13 The Ministry of Economy, Trade and Industry of
Japan.
14 Ibid.
15 Centre for Connected and Autonomous
Vehicles.
16 See our previous bulletin on this issue.
18 Safe Use of Automated Lane Keeping System
(ALKS): Summary of Responses and Next Steps at page
41.
19 Ibid at page 45.
20 Self-driving’ cars to be allowed on UK roads
this year.
22 DIRECTIVE 2007/46/EC OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL, repealed by REGULATION (EU) 2018/858 OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL
23 In its report on the evaluation of Council Directive
85/374/EEC, the European Council noted that concepts of damages,
defect, and product may change as emerging technologies become more
common place. Currently, an autonomous vehicle and its components
may be defined as both a vehicle and machinery.
24 Evaluation of Council Directive 85/374/EEC on the
approximation of laws, regulations and administrative provisions of
the Member States concerning liability for defective
products.
25 Ibid, pg. 6.
26 France Plans on Adopting New Rules for
Self-Driving Cars
27 France Plans on Adopting New Rules for
Self-Driving Cars
28 The Minister of the Interior of France
29 CLEPA. Also see, interieur.gouv.fr
30 Ibid.
32 The full draft law in German
33 Supra note 24.
34 The full Decree in Italian.
35 Ibid.
36 Ibid.
37 Ministry of Sustainable Infrastructure and
Mobility
38 H.R. 3388.
39 Congress: H.R.3711 – Self Drive Act
40 H.R. 3388
41 Green, Alexandra, Case Note, THE SELF DRIVE ACT:
AN OPPORTUNITY TO RE- LEGISLATE A MINIMUM CYBERSECURITY FEDERAL
FRAMEWORK FOR AUTONOMOUS VEHICLES, 60 SANTA CLARA L. REV. 217
(2020) at 239-240.
42 DIVISION 16.6. Autonomous Vehicles [38750 – 38755] (
Division 16.6 added by Stats. 2012, Ch. 570, Sec. 2. ), also see:
Department of Motor Vehicles, State of
California
43 Ibid.
44 Nevada Revised Statues 482A.090 Manufacturer or
developer not liable for certain damages.
45 Ibid.
47 China’s Legislation on Autonomous Cars Rolls
out.
48 Ibid.
49 Draft Proposed Amendments of the Road Traffic Safety
Law, s 155.
50 Ibid.
51 Ibid.
52 Ministry of Industry and Information Technology of
the People’s Republic of China
53 The full legislation is in
Chinese.
China’s Legislation on Autonomous Cars Rolls
out.
55 Ibid.
56 Ibid.
57 Ibid.
58 Ibid.
59 Ibid.
60 Ibid.
61 Motor Vehicle Safety Act, SC 1993, c
16.
63 Guidelines for testing automated driving systems
in Canada
64 Ontario’s Automated Vehicle Pilot
Program
65 Modes of Transportation IN AN AUTONOMOUS
VEHICLE
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.