By Mark Schaub, Atticus Zhao and Jerry Wang King & Wood Mallesons’ Corporate & Securities group
Many countries recognize the significant road safety, economic and environmental benefits that automated driving technologies may bring. As a result the eventual roll-out of autonomous technology is awaited with great eagerness but before automated driving vehicles can be commercially launched they will need to undergo strict technical and road tests to ensure their safety.
At present, the United States (US), Germany, the United Kingdom (UK), Australia and Singapore have enacted legislation or issued guidelines in respect of road tests of automated driving vehicles but China has no formal legislation or guidelines in this area. Beijing police’s investigation of the CEO of China’s internet technology giant Baidu’s use of autonomous driving mode on Beijing roads revealed that testing of automated driving vehicles in China is currently at a crossroad between advancing the technology but also ensuring legal compliance. The time is ripe for the Chinese authorities to issue regulations and guidelines on road testing of automated driving vehicles.
This article is divided into three parts. The first part mainly introduces the main pieces of some leading countries in the area (including US, Germany, UK, Australia and Singapore) in respect of testing of automated driving vehicles. The second part provides an overview of China’s current situation in respect of automated driving vehicle tests. The third part briefly highlights the importance of establishing China’s testing regulations or guidelines on automated driving vehicles and what practices China may adopt from other jurisdictions.
Key Requirements on Testing of Automated Driving Vehicles in Leading Countries
1. Access Requirements
Access requirements refer to the prerequisites for public road testing of automated driving vehicles. The main elements include:
These requirements include standards for automated driving vehicles, the necessary driving mode switching system and the driving condition recording system and specified safety functions, namely:
- Vehicle standards: Nevada and Californian regulations require that automated driving test vehicles must meet applicable safety and performance requirements.
- Switching system of automated driving and human-driving: Nevada, California and Singapore all require the autonomous vehicle to be equipped with a switching system to allow the operator to conveniently take back control of the automated driving vehicle.
- Recording system of driving condition: California and Singapore require automated driving vehicles to be equipped with a recording system to capture and storage data. California especially stipulates that such a mechanism must be able to capture and store sensor data for at least 30 seconds before the accident occurs. The data shall be captured and stored in a read-only format and preserved for three years. Nevada requires the automated driving vehicle be equipped with a visual indicator to show when the autonomous technology is operating the vehicle.
- Safety function: California, Nevada and Singapore also require the automated driving vehicle to be equipped with a system to alert the operator to take control in case of an autonomous technology failure. In addition, California requires the automated driving vehicle to have a visual indicator inside the cabin to indicate when the autonomous technology is engaged and a mechanism to engage and disengage the autonomous technology that is easily accessible for the operator.
(2)Advance Planning for Testing on Automated Driving Vehicles
Some jurisdictions require the test entity to make a comprehensive plan prior to testing on public roads. In general, the test entity needs to apply in advance to the competent authority (e.g. Department of Motor Vehicles in California and Nevada secretary of state for Michigan). A public road test can only be carried out after approval is obtained.
In another example, Australia requires the test entity to first contact the relevant road transport agency to determine if any exemptions or permits to test on Australia roads are required. Testing requiring an exemption or permit needs details as to location and description of technology expected to be tested. This will allow the transport agencies to consider anticipated traffic risks and mitigating actions, requirements for infrastructure or networks, engagement with the public and other stakeholders (i.e. may include engagement with emergency services), managing change or adjustment over the course of testing (test entities are likely to update software and upgrade hardware over the course of testing). 
2. Test Site
The scope of the test site means that public testing of automated driving vehicles can only be conducted on specified routes.
In Australia, the test entity needs to set out the scope of the test site in the test application. In Singapore, the scope of test site is identified and the test entity shall strictly adhere to the approved test route. Any deviation from approved test routes requires a further written application.
Automated driving vehicles tests have far higher requirements for the test site than traditional vehicle testing. In addition to safety requirements, the test site must be able to simulate complex traffic scenarios to test the driving-stability of the automated driving vehicle as well as analyze the results to improve the driving environment database. The test site is a cooperative platform for relevant enterprises to coordinate on a variety of issues including data communication and safety guarantee etc.
A number of jurisdictions have already established specialized testing sites for automated driving vehicles. Well-known test sites include MCity, GoMentum Station, Castle Air Force Based and Smart Road which are in the US, Asta Zero in Sweden and the City Circuit in the UK.
3. Persons in the Vehicle
Such requirements relate to whether drivers or other operators shall be in the vehicle when testing an automated driving vehicle.
Nevada, Michigan, California and the UK all require the vehicle to be operated by an operator capable of taking over immediate manual control of the vehicle in an emergency. In particular California requires the operator to be an employee, contractor or person designated by the manufacturer with a proper class of license for the type of vehicle being tested. The UK requires the driver of the automated driving vehicle to have a high level of experience and skill. This is a general requirement but likely means a test driver needs to hold a clean license, have a minimum number years driving experience, an ability to anticipate situations and an engineer familiar with the technology and the process of switching between control modes. Depending on the situation, two operators may be considered – the driver and the test assistant.
However, as automated driving technology develops it is likely the requirements for drivers may be softened. One example is that the Californian legislature introduced a special pilot act in 2016 which allows for automated driving vehicles to be tested in a specified area without a driver. The UK acknowledges that the nature of automated driving technology is driver-free and that further amendments to the regulations on public road testing of automated driving vehicles are needed going forward.
Most leading jurisdictions require the test entity to purchase insurance prior to testing to deal with liability arising from accidents.
Michigan requires the manufacturer to submit satisfactory proof to the secretary of state that the vehicle is insured. Nevada and California specifically require that the manufacturer obtain an instrument of insurance in the amount of five million dollars, and provide evidence of the insurance to the Department of Motor Vehicles.
Australia also requires the manufacturer to obtain appropriate insurance such as compulsory third-party insurance and product liability insurance to ensure that any road users injured by an automated vehicle testing get full protection. Singapore requires that the manufacturer obtain liability insurance before the approved testing and to ensure that it is in force at all times during testing. 
The UK’s Department of Transportation considers that insurance requirements on vehicles under the Road Traffic Law also apply to public road testing. If the vehicle is not insured the manufacturer is responsible for injuries and other damages.
5. Security Deposit
The requirement on security deposits states that manufacturers are required to make a security deposit or offer a guarantee to the competent authority before a public road testing.
The amount of such deposits varies. Nevada requires the manufacturer to pay a USD 5 million cash deposit or other equivalent guarantee to the Department of Motor Vehicles. Other jurisdictions may be more flexible. One notable case is Singapore which requires the manufacturer to make a deposit of an appropriate amount depending on the situation.
6. The Liability of Original Manufacturer
Automated driving vehicles (at least initially) are generally converted from regular vehicles. For this reason whether the original manufacturer will be liable for accidents that may occur during testing is a concern to be considered.
The regulations of Nevada and Michigan provide that the manufacturer of a motor vehicle that has been converted by a third party into an automated driving vehicle is not liable for damages if this is due to a defect caused by the conversion of the motor vehicle. The exception will be if the defect that caused the injury or damage was present in the vehicle as originally manufactured.
7. Data and Information
Big data has become a very important issue. As such concerns abound in respect of recording, preservation, submission and protection of data and information that comes from public road testing.
Singapore has comprehensive regulations which require all automated driving test vehicles to be equipped with black boxes to collect and record test information, including date, time, GPS coordinates, speed, automated driving mode, braking, number of times an operator takes over control of the vehicle due to failure of the automated driving mode and weather conditions.  The information must be stored throughout the testing process and shall not be deleted within three years after the completion of the test. Such information should be retrievable upon the authorities’ request.  Data protection requires the competent authorities to take appropriate measures to protect sensitive business information and prevent such information from being disclosed. 
Laws and regulations of Australian also provide detailed provisions on data and information. If the test vehicle has a serious accident, the test entity must issue a preliminary report containing the time, place, driving condition (automatic mode or manual mode), traffic conditions, road and weather conditions, vehicle driving information (such as speed and brake function), sensor information within 24 hours of the accident. Within seven days after the accident, the road transport agency shall be provided with a detailed report.  For some small accidents or special circumstances (such as the operator taking over control of the vehicle, or public complaints about the test vehicle), the test entity shall submit a monthly report.  In addition, for some sensitive business information and data, the road traffic department will maintain confidentiality. 
Although Germany has not yet specified legislation relating to automated driving vehicle testing, according to its latest Road Traffic Law, automated driving vehicles must be equipped with a black box and must record whether it was the automated driving system or the operator in control of the vehicle when the accident occurs, and whether the driving system requires the operator to take over before an accident occurs. If no accident occurs, the information shall be stored for a period of six months; otherwise the information shall be stored for three years. 
UK also requires the test vehicle to be equipped with recording devices, to record the speed, whether the vehicle is manual or automatic, whether the vehicle warning system is open, and sensor information.  Manufacturers are also required to ensure that the vehicle for testing shall have some anti-jamming capability to prevent hackers and other unauthorized persons from attacking the system. 
8. Safety Requirements
Safety requirements relate to preparing safety management plans, compliance with road traffic safety regulations and accident reporting systems during testing.
Australia requires the test entity to produce safety management plans that lists the major security risks and risk mitigation measures during the tests, such as dealing with safety of the automated driving system, risk of systematic failure, risk of damaging to road infrastructure and whether there is an operator in the vehicle. 
The Californian regulations require: (i) the operator must follow the requirements for road traffic safety regulations (such as the limit of the number of automated driving vehicles on the road, registration requirements, special requirements for driving permits, and the requirement for revoke permits or disable driving permits),  (ii) in the event of a traffic accident, the manufacturer shall report to the Motor Vehicle Administration within ten working days. The accident report shall be made public on the website of the Motor Vehicle Administration,  and (iii) manufacturers shall submit an annual report to Motor Vehicle Administration to specify the number of times the operator has taken over due to failure of the automated driving mode during the test period, as well as the test conditions, road conditions, location description and other information. 
UK requires that the automated driving vehicles being tested comply with all relevant road traffic laws and regulations of UK. 
Current Status of China’s Automated Driving Vehicle Testing
China has established a number of specialized test sites for automated driving vehicles and has also started drafting of relevant standards for automated driving vehicles but has not yet introduced formal regulations or guidelines on road testing.
1. Specific Automated Driving Vehicle Testing Sites
China has set up test sites for automated driving vehicles (or intelligently connected vehicles) in a number of cities. Notable ones include the National Intelligent Connected Vehicle (Shanghai) Pilot Demonstration Area, the Comprehensive Evaluation Base of Intelligent Connected Vehicle of Tongji University, and China Intelligent Vehicle R&D and Testing Center established in Changshu. Further test sites are expected in Beijing, Wuhan, Guiyang and many other cities.
In addition, the National Intelligent Connected Vehicle (Shanghai) Pilot Demonstration Area, Intelligent Vehicle and Intelligent Traffic Industry Innovation Demonstration Area in Beijing and Intelligent Vehicle Integrated System Texting Zone i-VISTA in Chongqing are currently under construction, which can provide additional testing function of communication, network and basic signal facilities.
This means China is taking serious steps to develop a closed testing environment for automated driving vehicles which will provide good foundation for the early testing of automated driving vehicles.
2. Specialized Testing Standards for Automated Driving Vehicles
China requires vehicles to be tested by a legally qualified testing institution before applying to authorities for launching on the market. The current vehicles test items includes power performance testing, fuel economy testing, brake performance testing, handling stability testing, engine testing, chassis testing, ABS system performance testing and CAN testing.
The current China vehicle testing system does not cover the test and evaluation requirements for automated driving vehicles. In June 2017, the Chinese Ministry of Industry and Information Technology (“MIIT”) and the Standardization Administration of China issued a draft Guidelines for Construction of National Vehicle Networking Industry Standard System (Intelligent Network Vehicle) (“Draft Guidelines”), which is expected to be formally promulgated in the near future. According to the Draft Guidelines China will formulate 95 new standards of which 9 have been established or already in the process for approval and 12 standards are in research stage.
The standards that have been established or in application mainly focus on mature technologies, such as blind spot monitoring systems, maintaining lanes assistance systems and electronic stability control systems. Development of the core technologies of automated driving vehicles (or intelligent connected vehicles), such as T-boxes, vehicle horizontal and vertical combination control and remote information service communication terminals are still in the early research stage and only expected to have an official launch to occur some time in the future.
3. Public Road Tests
The Beijing police’s investigation on Baidu’s use of automated driving mode on Beijing public roads reflects that China is lagging behind some other jurisdictions in regulating road tests by automated vehicles. The PRC Road Traffic Safety Law was promulgated in 2003 and, although it has been amended in 2007 and 2011 respectively, automated driving vehicles were not on anyone’s radar at some stage and therefore not under consideration. Current PRC traffic law prohibits public road testing of automated driving vehicles. Examples of such laws are set out below:
- Motor vehicle manufacturers and other entities may not use public roads to test motor vehicle braking performance; 
- Where the registered motor vehicle has any of the following circumstances, the owner of the motor vehicle shall apply to the traffic administrative department of the public security organ that registered the motor vehicle for alteration registration: … replacement of the body or frame …; 
- Motor vehicles shall not have the following acts on the highway: … testing a vehicle or learning how to drive a motor vehicle. 
Implementing Best Practice in Establishing China Regulation Regime for Testing of Automated Vehicles
1. Formulate Test Regulations or Guidelines as Soon as Possible
The regulatory practices of other jurisdictions show that laws or guidelines for automated driving vehicle testing are crucial to eliminate/reduce the legal obstacles to automated driving vehicle testing as well as unifying test standards and requirements. This will support manufacturers to ensure automated driving vehicles are put through proper testing standards before being launched on the market.
We understand that China’s MIIT, Ministry of Public Security and the Ministry of Transportation are currently drafting up Administrative Rules for the Use of Public Road for Intelligent Connected Vehicles Test (“Public Road Testing Rules”). These Public Road Testing Rules will provide a legal basis for automated driving vehicle to test on public roads. Once issued the Public Road Testing Rules will set a concrete path for testing of automated driving vehicles on public roads in China.
2. Learn From the Best Practices of Other Jurisdictions
The relevant laws and guidelines on automated driving vehicle testing in other jurisdictions indicate that the Public Road Testing Rules and other regulations will need to cover access requirements, safety standards, test applications, test sites or road requirements, driver/operator requirements, insurance requirements, deposit requirements, road test information records, and test vehicle license plate management as set out above.
A comprehensive regulatory regime on testing can allow a jurisdiction to become a hub of testing activity. California, as one of few pioneer US states to establish legislation on automated driving vehicles testing has become the first testing choice for many auto manufacturers and technology companies. Currently 37 global companies including Volkswagen, Mercedes-Benz, Google, Tesla, BMW, Apple and Baidu and SAIC of China have obtained Californian Automated Driving Car Test License which shows the confidence industry has in California’s regulatory regulations and supervision. China may wish to take these rules as a reference when formulating relevant laws and regulations – that may help China to become a global leader in automated driving technology.
Automated driving road testing is key step to move automated driving vehicles from the theoreticals of the lab to the realities of the market. A number of jurisdictions are taking the lead in this regard. Although, China has made great advances in constructing closed test sites it has not kept pace with others in respect of regulatory rules or guidelines on road testing.
China may wish to consider the approaches of other jurisdictions when formulating China’s automated driving test regulations in order to lay a good foundation to enable China to become a global leader in development of automated driving vehicles.
 On July 5, 2017, during the artificial intelligence developer conference held by Baidu, Li Yanhong, the founder and chairman of Baidu came to the conference by showing sitting in a self-driving car on Beijing public roads and was later was investigated by Beijing police for possible violation of PRC traffic laws.
 Nevada Senate Bill No. 313(2013), sec. 4.1., Nevada Senate; California Senate Bill No. 1298(2012), DIVISION 16.6.(c)(1), California Senate.
 An operator could be the driver or a person not sitting in the driver’s seat but causes the autonomous technology to engage
 Nevada Senate Bill No. 313(2013), sec. 4.2.(a), Nevada Senate; California Senate Bill No. 1298(2012), DIVISION 16.6.(c)(1), California Senate; Singapore Road Traffic (Amendment) Bill No. 5(2017), section 6C (1)(g), Parliament of Singapore.
 California Senate Bill No. 1298(2012), DIVISION 16.6.(c)(1)(G), California Senate; Singapore Road Traffic (Amendment) Bill No. 5(2017), section 6C (1)(i), Parliament of Singapore.
 California Senate Bill No. 1298(2012), DIVISION 16.6.(c)(1)(G), California Senate.
 Nevada Senate Bill No. 313(2013), sec. 4.2.(b), Nevada Senate.
 California Senate Bill No. 1298(2012), DIVISION 16.6.(c)(1)(C), California Senate; Nevada Senate Bill No. 313(2013), sec. 4.2.(c), Nevada Senate; Singapore Road Traffic (Amendment) Bill No. 5(2017), section 6C (1)(g)(ii), Parliament of Singapore.
 California Senate Bill No. 1298(2012), DIVISION 16.6.(c)(1)(A)(B), California Senate.
 Application for Approval to carry out Autonomous Vehicle(AV) Trials(2015), Annex C, Para.2, Land Transport Authority(Singapore).
 Nevada Senate Bill No. 313(2013), sec. 3., Nevada Senate; California Senate Bill No. 1298(2012), DIVISION 16.6.(b)(2), California Senate; Michigan Senate Bill No. 169 (2013), Sec. 665.(2)(b), Michigan Senate; Regulation 107, 10.24, The Pathway to Driverless Cars: A detailed review of regulations for automated vehicle technologies, Department of Transport, February 2015 .
 California Senate Bill No. 1298(2012), DIVISION 16.6(b)(1), California Senate.
 16.15, The Pathway to Driverless Cars: A detailed review of regulations for automated vehicle technologies, Department of Transport, February 2015 .
 4.22, The pathway to driverless cars: a code of practice for testing, Department of Transportation, July 2015.
 California Assembly Bill No. 1592(2016), California Assembly.
 Regulation 107, 10.24, The Pathway to Driverless Cars: A detailed review of regulations for automated vehicle technologies, Department of Transport, February 2015 .
 Michigan Senate Bill No. 169 (2013), Sec. 244.(7), Michigan Senate.
 Nevada Senate Bill No. 313(2013), Sec. 2.5., Nevada Senate; California Senate Bill No. 1298(2012), DIVISION 16.6.(b)(3), California Senate.
 Singapore Road Traffic (Amendment) Bill No. 5(2017), section 6C (1)(b)(i), Parliament of Singapore.
 3.5, The pathway to driverless cars: a code of practice for testing, Department of Transportation, July 2015; Regulation 107, 13.6, The Pathway to Driverless Cars: A detailed review of regulations for automated vehicle technologies, Department of Transport, February 2015.
 Nevada Senate Bill No. 313(2013), Sec. 2.5., Nevada Senate.
 Singapore Road Traffic (Amendment) Bill No. 5(2017), section 6C (1)(b)(ii), Parliament of Singapore.
 Nevada Senate Bill No. 313(2013), Sec.5., Nevada Senate; Michigan Senate Bill No. 169 (2013), Sec. 817., Michigan Senate; Michigan Senate Bill No. 663 (2013), Sec. 2949b., Michigan Senate.
 Application for Approval to carry out Autonomous Vehicle(AV) Trials(2015), Instructions to interested applicants 8, Land Transport Authority(Singapore).
 Application for Approval to carry out Autonomous Vehicle(AV) Trials(2015), Instructions to interested applicants 9 -11, Land Transport Authority(Singapore).
 Singapore Road Traffic (Amendment) Bill No. 5(2017), section 6C (2), Parliament of Singapore.
 Guidelines for Trials of Automated Vehicles in Australia(2017), 6.1, Austroads ＆ National Transport Commission.
 Guidelines for Trials of Automated Vehicles in Australia(2017), 6.2, Austroads ＆ National Transport Commission.
 Guidelines for Trials of Automated Vehicles in Australia(2017), 6.4, Austroads ＆ National Transport Commission.
 Section 63 a, German Road Traffic Act (Straßenverkehrsgesetz, StVG).
 5.6,5.7, The pathway to driverless cars: a code of practice for testing, Department of Transportation, July 2015.
 5.10-5.15, The pathway to driverless cars: a code of practice for testing, Department of Transportation, July 2015; 15.16, The Pathway to Driverless Cars: A detailed review of regulations for automated vehicle technologies, Department of Transport, February 2015.
 California Senate Bill No. 1298(2012), DIVISION 16.6 (d)(3), California Senate.
Application Requirements for Autonomous Vehicle Tester Program( California), see :https://www.dmv.ca.gov/portal/dmv/detail/vehindustry/ol/auton_veh_tester
Application Requirements for Autonomous Vehicle Tester Program( California), see :https://www.dmv.ca.gov/portal/dmv/detail/vehindustry/ol/auton_veh_tester
 3.2, The pathway to driverless cars: a code of practice for testing, Department of Transportation, July 2015.
 Law of the People’s Republic of China on Highways, Article 2
 Regulations on the Implementation of The law of People’s Republic of China on Road Traffic Safety, Article 6. Many automated driving vehicles for testing are normally retrofitted from complete vehicles and thus retrofit is often needed.
 Regulations on the Implementation of the Law of People’s Republic of China on Road Traffic Safety, Article 16