Liability and the regulation for autonomous driving in Latin America

In Latin America (LatAm) countries, the autonomous driving market is experiencing paradoxical circumstances, with more questions than answers. While demand is driven by curiosity and incentives at the federal and local levels in each country, the regulatory environment is new, unable to keep pace with the dynamic nature of technological development and under pressure to provide answers. This dynamic reflects earlier waves of technological disruption in the region, where innovation advanced under legal categories not originally designed to accommodate such progress. 

The questions surrounding regulatory environments, however, are fundamental to the safe implementation of a technology that aims to revolutionise traffic and urban transportation, both in terms of comfort and safety. Although vehicles currently available in the market incorporate different levels of automation rather than full autonomy, significant legal challenges have already arisen. For example, if an automated driving system functioning as intended within the limits of its programmed capabilities causes damage to third parties (e.g. property or bodily injury) when avoiding a more serious accident (e.g. fatality), who is liable for the accident when it is caused by a decision, and not a defect, of the autonomous driving system?

This dilemma highlights the constraints of liability systems structured around human behaviour. Liability presumes an identifiable actor whose conduct can be evaluated for fault.  Autonomous systems, by contrast, commonly function through probabilistic modeling and predefined operational parameters, complicating the application of traditional fault-based analysis.

In LatAm countries and around the world, searching for answers to these questions has resulted in legal discussions and legislative reforms because the structure of legal systems were based on human behaviour. This means that to implement the technology, it is necessary not only to determine safety parameters, processes, licences, and permits, but also reinterpret the legal system to accommodate decisions based on programming, statistics, and probabilities that affect the rights of third parties or passengers.

In the absence of a specific and comprehensive regulatory framework for autonomous vehicles in most LatAm jurisdictions, this market remains subject to general regulatory regimes applicable to conventional motor vehicles, combined with a fragmented patchwork of other potentially relevant norms, such as traffic law, product liability rules, consumer protection statutes, cybersecurity standards, insurance regulation, and artificial intelligence governance frameworks. These regulations were not created for autonomous, software-driven vehicles. In practice, authorities must stretch traditional doctrines to fit new technological realities. This generates uncertainty for all actors involved and may lead to inconsistent outcomes and unclear risk allocation unless a more coordinated regulatory response is developed.

In this sense, the challenges for the market and regulatory agencies are not simple, especially the balance between the speed of technological development and the density of structural reforms at the legal and infrastructure levels. These are the initial findings on the state of the art of AV regulation in LatAm, which, like the EU (with exceptions), are imposing reforms at their own pace.

At first glance, only Argentina has parameters for the circulation of autonomous cars at the federal level, through a reform of the Traffic Law, although without guidelines for delimiting liability for accidents. In other countries, however, regulation is divided between those already discussing bills and those that are not. In this scenario, Brazil and Chile are experiencing advances both technological development and discussions about regulatory frameworks.

In Brazil, Bill n. 1317/2023, still pending in the National Congress, defines concepts, conditions for circulation, and safety guidelines, reserving technical specifics for the central authority. To some extent, the proposal also delimits liability in accidents, such as requiring the presence of a human driver to take control in emergency situations, and imposing safety and accident-avoidance systems.

In Chile, state agencies have encouraged testing since 2021 and recently issued announcements on implementing technology in traffic, but there is no specific legal framework in progress. Regulatory reforms and initiatives, however, are widely promoted, such as the Bill regulating Artificial Intelligence systems (Boletins n. 15,869-19 and 16,821-19), which will serve as the normative basis for the regulation of autonomous vehicles. Classified as “high-risk AI systems,” AVs would be subject to obligations regarding risk management, transparency, cybersecurity, and human supervision. In addition, it contemplates the creation of controlled testing spaces.

Colombia, Peru, and Mexico are not discussing bills at the federal level even though these countries also subject to growing demand, pressure to implement the technology, and testing phases. Advances, nevertheless, have been made. In Colombia, the circulation of automated driving systems up to SAE level 3 is regulated. In Peru, the regulation of electric and hybrid vehicles is paving the way for specific regulation. And in Mexico, discussions are underway regarding local regulations. The implementation of autonomous driving in these countries, however, still lacks a regulatory framework and legal certainty.

Thus, the current situation in LatAm is of promotion, incentive, curiosity, and rapid technological development, but regulation is still being studied at the institutional level and there are important questions about the actual circulation of autonomous vehicles.As with platform economies, the real challenge is not just about the technology. It concerns the question of how to apply existing legal categories to systems that do not fit comfortably in them.