Marnie Morella Silva Urdaneta (Universidad Central Del Este) has posted When Humans Retain the Signature but Lose Control: Effective Human Oversight and Fault-Based Civil Liability in AI-Assisted Decision-Making on SSRN. Here is the abstract:
The growing use of artificial intelligence in decision-making has reinforced an apparently reassuring formula: a decision remains human because a person can review, confirm, or sign it. This article argues that formal human presence is not enough for fault-based civil liability. What matters is whether the operator had a material capacity to control the AI-assisted process and whether that capacity was actually exercised. Using Spain and France as a focused comparative case study, the paper proposes four material conditions of effective human control: access to relevant information, functional understanding, a real possibility of contradiction, and effective power to intervene. Traceability is treated separately as evidentiary infrastructure rather than as a fifth condition of control. The analysis then adds two filters. First, deficient oversight does not itself establish liability; legally relevant causation must still be shown, including, where appropriate, through loss-of-chance doctrine. Second, lack of operator control does not automatically shift liability to the deployer or provider. Instead, the inquiry must identify which actor controlled the technical, organisational, and decisional conditions that mattered. The paper reads Articles 14 and 26 of the EU AI Act as potentially relevant to the civil standard of care without treating regulatory non-compliance as an autonomous rule of liability. It also distinguishes fault-based liability from the revised Product Liability Directive and examines how Spanish and French rules on employer liability and evidence may lead to materially different outcomes. The core claim is simple: the place where the human signature appears does not necessarily coincide with the place where effective control was located.
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