Blog post: The liability of robotic and autonomous systems

Liability of autonomous systems under the UAE Civil Code

This is the first in a series of blog posts discussing the liability of autonomous systems under United Arab Emirates (UAE) law.

As a general overview, there is no specific law that governs autonomous systems in UAE, meaning there is no law enacted on a federal or local level that specifically deals with AI regulation or policy.

However, there are several laws and regulations that cover the liability of autonomous systems, such as:

• the UAE penal code
• consumer protection laws and regulations on a Federal and Emirate level
• data privacy regulations
• the UAE Civil Transactions Law
• inherent Sharia law principles.

The subject is complex and requires a deep dive into each of the existing regimes. For this first post in the series, I will focus exclusively on the liability of autonomous systems under the UAE Civil Transactions Law no. 5 of 1985 (“Civil Code”).

A - Liability under the Civil Code

The main point of law is the following: Who is liable when an autonomous system causes injury or death to a person or damage to property?

Under common law, this is the regime of “tort”. Under the UAE Civil Code (and although some translations refer to “tort”) the equivalent term is “acts causing harm”.

Article 282 of the Civil Code states that “any harm done to another shall render the actor, even though not a person of discretion, liable to make good the harm.”

The “harm” is divided into two things:

1. harm done to a person
2. damage to property

The liability requires proof of damage and causality link, meaning that the damage suffered was actually caused by the act of harm. If these conditions are met, then the person causing the harm is liable and the one who has been injured is entitled to compensation.

Let us start with a basic example, a car hits a bystander and injures him. The injured person is entitled to compensation and the driver is liable as he was not paying attention to the road.

Now, consider the same example but this time the brakes did not work due to a malfunction: the manufacturer is liable.

Article 316 states that “Any person who has things under his control which require special care in order to prevent their causing damage, or mechanical equipment, shall be liable for any harm done by such things or equipment, save to the extent that damage could not have been averted. The above is without prejudice to any special provisions laid down in this regard.”

In both of the examples above, we were able to determine the “person”, whether natural or corporate, behind the harmful act.

Such person, is entitled to compensation. Article 292 states that “compensation shall be assessed on the basis the amount of harm suffered by the victim, together with loss of profit, provided that that is a natural result of the harmful act”. I will discuss in more details in my second post the remedies and compensation available to a person who suffered harm.

Therefore, the Civil Code liability regime clearly discussed the liability of “things” but the reasonable assumption is that “things” by themselves are not liable but the persons (whether corporate or individuals) behind them are.

What about autonomous systems?

B - The case of autonomous systems

What happens if an autonomous car injures a person? Who is then liable? The manufacturer of the car? The designer of the autonomous system? The designer of the cameras installed in the car? Was it fully autonomous or semi-autonomous (i.e. was there a driver behind the wheel who had “control of the car”)? Was the accident due to a simple mechanical malfunction or a more complex autonomous decision-making error over which a human had no control?

Article 291 of the Civil Code states that “If a number of persons are responsible for a harmful act, each of them shall be liable in proportion to his share in it, and the judge may make an order against them in equal shares or by way of joint or several liability.”

So liability can be shared if proven. But what if we cannot determine who is liable? And does this mean there is a gap in the regulations?

The existing provisions of the Civil Code cover the liability of harmful acts and are able to protect injured persons through compensation. These provisions such as article 316 for “liability of things” can be mirrored to cover autonomous systems’ liability in general.

However, in the case of a fully automated system with no control from a human, there is a potential gap in the regulations. This gap does not necessarily need to be covered by changing the existing regime or amending the articles of the UAE Civil Code. Drafting a “cover all cases” article may be difficult. I also believe it is early as we need more testing on autonomous vehicles to determine the root causes of any malfunction or accident.

This requires an enormous amount of data and we don’t have enough cases yet, in order to set legal precedents and draft laws or regulations.

One way to look at the potential gap is to see what other jurisdictions have done and try to tailor a solution that would fit the UAE regime. I will discuss this in my third post.

With many companies and governments investing in AI and autonomous systems, legislation should definitely accompany this fast-paced race.

 

Tarek Nakkach
Regional Legal Counsel - UKIMESA
Hewlett Packard Enterprise
and AAIP Programme Fellow 

 

Read the blog on Medium

This post is intended to be used for information purposes only and not as legal advice.

For the purpose of this post, the term autonomous systems covers robotics and Artificial Intelligence (AI) software or algorithms; any system that could function without human intervention or control. The focus from a legal point of view is on the term “autonomous”.