In the explanatory notes, the legislature referred to the special difficulty related to the fact that in a public benefit company, the shareholders have no economic interest:
"In a public benefit company, being a non-profit entity, which is funded, as a rule, by public funds (for example, a company financed by raising funds from the public or indirectly by means of tax exemptions), a special problem arises, which derives from the 'representative problem.' The representative problem arises in all those situations in which a person controls and manages assets for others. When it comes to a business company, in which the officers manage the company's assets, the problem is less, since the shareholders have an economic interest" (ibid., at p. 1092).
In these aspects, as noted, public benefit companies are similar to non-profit organizations. Therefore, the enactment of a legal arrangement with respect to companies for the benefit of the public – which the legislature did not apply to associations – also prima facie indicates that when the legislature was of the opinion that the existence of a derivative action mechanism should be allowed as an enforcement mechanism in addition to the unique mechanisms that apply in relation to a particular corporation, it adopted clear language in relation to this.
- Moreover. There are a number of interpretive sources that indicate that they move to the legislature's deliberations on a bill (Amendment No. 4) to the Companies Law, and afterwards, his approach was that the institution of derivative claim does not apply to associations.
Thus, from the minutes of the Knesset Finance Committee's hearing on a bill (Amendment No. 9) to the National Health Insurance Law, dated January 3, 1999 (which was discussed by the court in the Cohen case, in paragraph 42 of the judgment of Justice Y. Amit), it emerges that the legislature's position is that the institution of the derivative claim does not apply in relation to associations:
"In the Companies Law, there is a concept called a derivative claim, which means that there can be a situation in which an entity decides not to sue an officer within the body for considerations of "keep me and I will keep you" or for other reasons, even though that officer is detrimental to the entity he serves. In order to prevent this situation, the Companies Law has the status of a derivative lawsuit. [...] This possibility does not exist in the associations and associations of autonomy" (my emphasis, R.R.).
- The subjective purpose can also be examined in light of the process of formulating a new Associations Law, which is apparently "in the pipeline" (as was also noted in the Cohen case, in paragraph 51 of the judgment of Justice Y. Amit).
In accordance with a 2008 government decision on strengthening and consolidating relations between the Government of Israel, civil society and the business sector, an interactive roundtable was established, led by the Prime Minister's Office, consisting of representatives of the three aforementioned sectors, which discussed the principles of the new NGO Law (see: Resolution 3190 of the 30th Government, "Relations between the Government, Civil Society and the Business Sector Contributing to the Achievement of Public Goals" (February 24, 2008). Also available on the government's website: https://www.gov.il/he/Departments/policies/2008_des3190).