From the testing to the deployment of self-driving cars: Legal challenges to policymakers on the road ahead

Mr. Nynke E. Vellinga
Self-driving cars and self-driving technology are tested on public roads in several countries on a large scale. With this development not only technical, but also legal questions arise. This article will give a brief overview of the legal developments in multiple jurisdictions – California (USA), United Kingdom, and the Netherlands – and will highlight several legal questions regarding the testing and deployment of self-driving cars.
Policymakers are confronted with the question how the testing of self-driving cars can be regulated. The discussed jurisdictions all choose a different approach. Different legal instruments – binding regulation, non-binding regulation, granting exemptions – are used to regulate the testing of self-driving cars. Are these instruments suitable for the objectives the jurisdictions want to achieve?
As technology matures, self-driving cars will at some point become available to the general public. Regarding this post-testing phase, two pressing problems arise: how to deal with the absence of a human driver and how does this affect liability and insurance? The Vienna Convention on Road Traffic 1968 and the Geneva Convention on Road Traffic 1949, as well as national traffic laws, are based on the notion that only a human can drive a car. To what extent a different interpretation of the term ‘driver’ in traffic laws and international Conventions can accommodate the deployment of self-driving cars without a human driver present will be discussed in this article.
When the self-driving car becomes reality, current liability regimes can fall short. Liability for car accidents might shift from the driver or owner to the manufacturer of the car. This could have a negative effect on the development of self-driving cars. In this context it will also be discussed to what extent insurance can affect this development.