"The proposed law seeks to create a uniform arrangement that will suit all types of corporations. However, it is proposed not to apply all of its provisions to companies for the benefit of the public at this stage, since in their matter (and in the matter of non-profit organizations) the Ministry of Justice is currently working on a comprehensive legislative amendment" (my emphases, R.R.).
The legislature therefore expressed its opinion that although the introduction of certain changes in the law that applies to associations and companies for the benefit of the public is desirable, it is necessary to wait with the application of these changes. This is in light of the Ministry of Justice's work on a comprehensive legislative amendment. Although these statements were made in relation to aspects of insolvency – which will be regulated in the framework of a comprehensive legislative amendment dealing with non-profit organizations – they reveal a general position of the legislature regarding the need to wait for a comprehensive legislative amendment as well with respect to other aspects that will be regulated in the framework of the said amendment, including the derivative claim.
Even with regard to the issue of a derivative action in the name of an association, there is an advantage to a holistic legislative arrangement that will take into account all the relevant considerations, and will regulate all the issues that require regulation in relation to such a possibility (who can file a derivative claim on behalf of an association, under what circumstances, etc.).
The completion of the law by way of inference is not limited to the specific circumstances of the case in which the interpretive dispute arose. In the framework of the interpretive process, the broad implications of the interpretation determined and its possible effects on future cases must also be taken into account. The court must be careful and remember that a particular interpretation it adopts may have consequences that it does not necessarily have the proper tools to foresee – as it is a "disabled legislator" – and that it is therefore appropriate that the issue be fully dealt with by the legislative branch (see Barak – Interpretation of the Legislation, at pp. 674-675; and compare, with the necessary modifications, to the Civil Appeals Authority 1104/09 Attorney General v. ALAN B STEEN, [published in Nevo] at paragraph 22 of the judgment of President D. Beinisch (December 8, 2011)).
- More than necessary, it should be noted that the Supreme Court also addressed the question of the legislature's probable intention in relation to the possibility of filing a derivative action on behalf of an association. In the judgment, the court emphasized the absence of a legislative arrangement that allows the filing of such a lawsuit in accordance with the Associations Law as drafted at that time. He also noted the fact that the new Non-Profit Law is apparently "in the pipeline", and that it is proposed to include a clause that allows the filing of a derivative claim on behalf of an association by a member of an association, a board member and a "donor".
According to the approach of the court there, the aforementioned proposal for the new Associations Law supports the argument that "when the legislature wishes to grant any entity the right to sue on behalf of a corporation, it does so explicitly" (Cohen case, at para. 51 of the judgment of Justice Y. Amit). Although this position is not an interpretive source and the court even qualified its remarks, noting that it "does not express a position regarding the possibility of filing a derivative action on behalf of an association under the existing law", it is consistent with the conclusion that the absence of a legislative arrangement that allows the filing of a derivative action on behalf of an association constitutes a negative arrangement.
- In summary of this point, I am of the opinion that the various interpretive sources to trace the subjective purpose of the law support the conclusion that the absence of a legislative arrangement that allows the filing of a derivative claim on behalf of an association constitutes a negative arrangement and not for the buyer.
In light of all of the above, I am of the opinion that the absence of an explicit statutory provision that applies the institution of a derivative action to associations should be interpreted as a negative arrangement, i.e., that it is not possible, in the current legal situation, to allow the filing of a derivative claim on behalf of the Association. Even if this result does not necessarily reflect the desired law, it is not sufficient to enable "complementarity" of the law by virtue of an inference from the provisions of the Companies Law.