The Applicants also rejected a series of arguments regarding the content of the Committee's decisions, including the Respondents' version regarding the "double counting" of future collections, in respect of which it was claimed that this was an expansion of the façade. The reduction made by the committee in calculating the damage in the amount of NIS 7.5 million transferred to the First Division was also noted; the avoidance of calculating linkage and interest differentials; and the conclusion regarding the scope of the expected collection, especially in light of the cessation of collection due to the coronavirus crisis.

Regarding the decision to adopt the recommendations of the Claims Committee, it was argued that it was tainted by a conflict of interest on the part of respondents 2-4 and other members of the forum that made the decision, and that no tainted majority was required. It was also claimed that there was no informed discussion of the Claims Committee's conclusions. With regard to the argument for the implementation of the majority's position, it was argued that the Association did not bring any evidence of an agreement with respondents 2-4 or with their insurance companies regarding the payment of the sum of NIS 1.7 million, and that the claim that an additional sum of NIS 3.3 million would be collected by the Association from the teams over a period of 6 years from the date of the judgment is a continuation of the attempt to "dissolve" the affair. It was also argued that the manner of collecting the sums had not been determined, and no evidence was presented as to the parties' agreement to pay them.

40. With regard to the question of the possibility of filing a derivative claim in the Association, the Applicants argued that even if they themselves are not entitled – as members of the Association's management – to file an application for approval of a derivative claim, the filing of the application should be approved and an order to add a member of the Association as an additional derivative plaintiff. On the merits of the matter, it was argued that the right of the members of an amutah's board to file a motion to certify a derivative claim on its behalf should be recognized, in parallel with the director of the company, and for the same reasons. The respondents' position that a derivative claim should not be approved due to the supervision of the association, a position that is explicitly contradicted by the statements of the State Attorney and the Registrar of Associations in the present proceeding, should also be rejected. The arguments that the appointment of CPA Alkalai makes the derivative claim process redundant, and that the lack of a property interest of the association's members in the association prevents the possibility of filing a derivative lawsuit.

Discussion

41. The current proceeding raises two fundamental questions on which the parties disagree: The first It is a preliminary question, the answer to which is likely to make the continuation of the hearing as a whole redundant, and it relates to the court's authority to hear a derivative action on behalf of the Association against respondents 2-4. This is because it is an association (and not a company), and in view of the Applicants' status as members of its management; And the second is what is the implication of appointing a number of officials to examine the impact of the prohibited transfers on the Association's rights, including the appointment of CPA Alkalai, the appointment of Adv. Sol, and most importantly – the appointment of the Claims Committee.
42. As has been noted in case law more than once, a request to certify a derivative claim always raises a dilemma between two opposing considerations. The First Consideration It is the preservation of the freedom of the authorized organs in the corporation to manage it and make business and other decisions relating to it. This freedom stems from the structure of corporations and the fact that the power to decide on them is usually given to certain institutions in the corporation – in accordance with the law and the basic documents of the specific corporation. Deviating from the corporation's usual conduct and granting decision-making power to someone who is not legally authorized to do so is therefore an exception to the principle of non-intervention, which as a rule should be avoided.

The case law also recently recognized that the decision to file a lawsuit is a business decision, which is usually subject to the principle of non-intervention (see, for example, Civil Appeal 4857/16 Menashe v. Vision Air Ltd., [published in Nevo], para. 27 of the judgment of Judge Y. Danziger and the references there (April 24, 2008) (hereinafter: "the Vision case"); See also the judgment given only recently in other municipal applications 6913/18 Shkedi v. Rhodium Investments Ltd., [published in Nevo] at paragraph 20 of the judgment of Justice Y. Amit (August 4, 2020) (hereinafter: "the Shkedi case")).